Law
helps cooperation
between tribal, state courts
By
Paul W. Stenzel
Special to Wisconsin Law Journal
June
9, 2004
 |
| Lawyers
in almost any practice area should have at least a passing knowledge about the
legal systems of the tribes in the state and the unique state and/or federal laws
relating to tribes that may affect their practice. Paul
W. Stenzel
von Briesen & Roper s.c. |
The recent
enactment of Assembly Bill 402 (AB 402) is one more step forward in the growing
trend of communication and cooperation between tribal and state courts in Wisconsin.
This article discusses the new law, its place in the tribal-state dialogue and
the implications for lawyers practicing in the state.
AB
402 was developed and passed as a direct response to the Wisconsin Court of Appeals
decision in In the Interest of Elmer J.K. III, 224 Wis.2d 372 (Ct.App. 1999).
In that case, Elmer, a juvenile and member of the Menominee Indian Tribe (Tribe),
was adjudicated delinquent in Menominee Tribal Court. Pursuant to an agreement
between the Tribe and the Wisconsin Department of Corrections (DOC), the tribal
court ordered that Elmer be placed in Northwest Passage, a secure treatment center
in Polk County.
Elmer
subsequently engaged in conduct that led to several charges of violation of state
law including disorderly conduct and battery. A delinquency petition was filed
in Menominee-Shawano County Circuit Court. Under the Tribe’s agreement with
DOC, it states that the tribal “Court retains jurisdiction and legal custody
of all Indian persons affected by the Court’s orders and no placement by
the Court pursuant to this agreement shall act to relinquish said jurisdiction
and legal custody ....”
Elmer
argued that this language foreclosed state court jurisdiction. The Court of Appeals
disagreed with Elmer and affirmed the trial court’s jurisdiction stating
that the agreement’s language means that the tribal court retains jurisdiction
over the juvenile under the dispositional order arising from the delinquent act
committed within the Reservation, not subsequent acts committed outside the Reservation
boundary.
While
the Elmer court refused to make room for tribal court jurisdiction, AB 402 requires
an approach that correctly realizes that just because a state court can hear a
case doesn’t mean it should. Now, when a juvenile allegedly commits a delinquent
act outside of the tribe’s jurisdiction while under a tribal court order
and that order has placed the juvenile outside the tribe’s jurisdiction,
AB 402 governs.
The
law provides that when these circumstances are present, prior to any state court
filing, the state juvenile intake worker should consult with tribal officials
and make a determination as to whether it is in the best interest of the juvenile
for the case to proceed solely in tribal court. Similarly, when the above circumstances
are present, if a petition is filed in state court and the state court subsequently
becomes aware that a petition has been or may be filed in tribal court, the state
court must stay its proceeding and communicate with the tribal court to discuss
which court is the more appropriate forum.
The
cooperative provisions of AB 402 echo its forerunner, Teague v. Bad River Band,
2003 WI 118. In that case, involving Jerry Teague, a former employee of the Bad
River Band of Lake Superior Chippewa Indians, the Wisconsin Supreme Court ruled
that when parallel actions are filed in state and tribal courts concerning the
same case, the considerations of comity govern. Accordingly, the state court must
consider a list of factors enumerated by the Teague court and consult with the
tribal court to determine whether the state court should relinquish its jurisdiction.
The
intent of the Supreme Court appears to be that state court judges will confer
with their tribal counterpart and come to agreement about where it would be most
appropriate to hear the case. Similarly, AB 402 defines additional circumstances
when state court officials shall confer with tribal court officials to determine
which forum is in the best interest of the juvenile.
The
trend of the litigation and legislation signals an important shift: the discussion
is less about where these types of cases can be heard and is more about where
the cases should be heard. The distinction is critical: determining where a case
can be heard embraces a view of jurisdiction as a zero-sum turf battle; determining
where a case should be heard embraces a more public-minded view of jurisdiction
as a shared responsibility.
This
shift has occurred for three main reasons. First, tribal justice systems in Wisconsin
have become more developed over the last 25 years. Second, Chief Justice Shirley
S. Abrahamson is committed to fostering good relationships with the tribal judiciary
(and the tribal judiciary has reciprocated). Third, the law is clear that in many
situations state and tribal courts will have concurrent jurisdiction over a matter.
These
intergovernmental developments have implications for lawyers practicing in Wisconsin:
1) They should be aware of the larger institutional implications behind any venue
or jurisdictional issues that may be assessed in a situation where tribal and
state court forums are in the mix. 2) The increasing deference shown by state
courts towards tribal courts means that lawyers disregard tribal court systems
at their peril. (In the Teague case, Jerry Teague’s lawyers intentionally
defaulted in tribal court and paid a heavy price when the Wisconsin Supreme Court
ruled that considerations of comity required that his case be dismissed from state
court.) 3) Lawyers in almost any practice area should have at least a passing
knowledge about the legal systems of the tribes in the state and the unique state
and/or federal laws relating to tribes that may affect their practice.
Although
AB 402 is likely to affect only a handful of cases, its larger implications should
not be overlooked. With AB 402, the state Legislature has followed the Judiciary’s
signal from Teague by codifying a policy of tribal consultation when it could
have done nothing or taken an entirely different legislative path. At least in
the area of court jurisdiction, the zero-sum view is arguably waning while the
shared-responsibility view is ascending. Perhaps each government realizes that
what is in the best interests of their constituents can be achieved through constructive
dialogue and negotiation.
Paul
W. Stenzel is a member of von Briesen & Roper’s Indian Law Section. Prior
to joining von Briesen, he was a Staff Attorney with the Stockbridge-Munsee Indian
Community for eight years where his primary areas of responsibility included tribal
court development and tribal court litigation, intergovernmental agreements with
state and local governments, law enforcement, and employment. Stenzel served as
the Stockbridge-Munsee Tribal Prosecutor for eight years. He can be reached at
pstenzel@vonbriesen.com.
